Central Lumber Co. v. Porter , 139 Miss. 66 ( 1925 )

^* Headnotes 1. Master and Servant, 26 Cyc., p. 1113; 2. Master and Servant, 26 Cyc., p. 1209; 3. Evidence, 22 C.J. Section 813; Witnesses, 40 Cyc., p. 2666. The appellee was plaintiff in the court below and appellant the defendant. The plaintiff brought suit for a personal injury, alleged to be inflicted upon him by an unruly team of oxen, which were furnished by the team foreman of the appellant for the performance of the work which the plaintiff was engaged in. The work being done at the time of the injury was the grading or repairing of a railroad track of the appellant. The plaintiff was in charge of a crew performing the work of cutting down a hill and grade, to do which it was necessary first to take up the rails and cross-ties and plow the dirt up and move it to the desired place. This work was done under the general direction of the superintendent of the company, according to the plaintiff's evidence. This superintendent would point out what he desired to have done, and the plaintiff in charge of the crew would perform the work according to the best judgment of the plaintiff as foreman.

A four-yoke team of oxen was used in pulling the plow which inflicted the injury to plaintiff, and in the lead yoke of oxen was an ox which was nervous and unruly, and which could not stand being crowded, and could not stand being thrashed with a whip. Next to this lead yoke of oxen was an unbroken yoke of oxen, being trained to work in the team, and plaintiff's proof shows that this unbroken yoke of oxen had a tendency to make the alleged unsafe and unruly ox in the lead yoke nervous, and whenever any one came in close touch with this alleged unsafe, and nervous ox he would run and turn and become unsafe and unruly. A number of men were working on the job, and at various times the crew varied from eight to ten men to twenty-odd men. The plaintiff was assisting in the work and was directing the operation of the plow when the oxen turned, made back in the direction of the plow, and, as a chain was attached to the plow to pull it, it caused the plow to be suddenly turned from the direction it was going, and plaintiff was struck and knocked down and run over by said oxen, and his leg broken between the hip and the knee, and otherwise injured seriously.

The plaintiff testified that he applied to the team foreman for another team of oxen with which to perform the work, and told the foreman that this special ox was unsafe and dangerous and unruly, and was liable to cause some one to be injured; that he had some horse teams but not enough to operate the plow; that he requested other teams, but the team foreman told him he would not furnish them, and that plaintiff would have to continue to use the teams he then had; that plaintiff thereupon went to the superintendent and told him of the unsafe disposition of this special ox, and of the danger of performing the work of the crew under such circumstances, and requested the superintendent to furnish him with a proper and safe team with which to perform the work; that the superintendent told him he would investigate the matter and see what he could do, but in the meantime to go ahead and use the team that he had until he could investigate the matter; that this was a short time before the injury occurred.

On the trial the plaintiff introduced his physician, who had formerly had a position with the appellant company, and who seems to have been displaced or removed from such position as the company's surgeon by the superintendent of the company. This physician testified, and was the only physician and surgeon testifying as to the extent and character of the injuries to the plaintiff, and was the most expert witness testifying in reference to the nature, extent, and character of the injury. The appellant, in examining this witness (the physician) attempted to interrogate him with reference to the state of his feeling toward the superintendent of the company and toward the company also. The physician was asked the following questions, among others:

"Q. Doctor, how many cases have you testified in in which Mr. S.E. Moreton and his company was defendant? (Plaintiff objects; objection sustained; exception.)

"Q. Isn't it a fact that you yourself sued Mr. Moreton for one hundred thousand dollars, and feel bitterly towards him? (Plaintiff objects; objection sustained; exception).

"Q. Isn't it a fact that you made application to Mr. Moreton within a short time to be put back on this job, and he told you that you couldn't have it, and isn't it a fact you are unfriendly towards the Central Lumber Company? (Plaintiff objects.)

"By the court. The court will permit any legitimate evidence showing the state of feeling, or the existence of friction, between these parties, between the doctor and the defendant, but the question as asked is a little too broad.

"Defendant: I will repeat the question, and try to get it as the court thinks it should be,

"Q. Isn't it a fact that, because of the fact that you recently made application to be put back on the job, and because you lost the job with the Central Lumber Company, you are unfriendly to it?

"Plaintiff: We object to that.

"The Court: That is the same thing. I don't think we ought to inquire into the cause of these things, but the fact.

"Plaintiff: We ask the court to instruct counsel not to ask any more questions along that line.

"Court: I will rule on them as they are asked. The counsel is entitled to have those questions go into the record, of course. I sustain the objection to the question.

"To which action and ruling of the court exception was taken."

There was a verdict for the plaintiff and judgment for two thousand dollars, from which this appeal was prosecuted.

It is first insisted that the court below should have granted the appellant a peremptory instruction because negligence cannot be predicated on the character of the work animals short of viciousness, and because appellee was furnished a reasonably safe team; that, even if it were thought that the "off lead" ox was unsatisfactory, there was never a refusal to replace such ox, but a promise to investigate, which promise had not been breached at the time of the accident; because, even if he deemed the "off lead" ox unsuitable, appellee, in continuing to work such ox, assumed all risk of what might happen to himself; and because the injury was not caused by the tendency the lead ox is shown to have possessed; and because appellee was not engaged to railroad work and therefore cannot claim any benefit from section 6684, Hemingway's Code (chapter 194, Laws of 1908), which abolishes the fellow-servant doctrine.

It is next insisted that negligence cannot be predicated on the character of the work animals short of viciousness; that the proof does not show that the animal involved here was vicious. Without entering into any definition of "viciousness," we think that this court has laid down the rule that, where a master has knowledge that an animal is unsafe and dangerous, and furnishes such an animal to a servant for use in the master's service, in case of injuries to the servant from such unsafe animal the master is liable.

In Farmer v. Cumberland Tel. Tel. Co., 86 Miss. 55, 38 So. 775, it was held that a master, having knowledge that a horse is wild and accustomed to run away, who furnished it to a servant ignorant of its character, for use in his service, is liable to the servant for personal injuries resulting from the running away of the animal while in such use. It is also held in that case that the circumstances stated in the case were sufficient to show knowledge of the unsafe character of the animal by the master.

In Miller v. Blood, 217 N.Y. 517, 112 N.E. 383, it was held, in a servant's action for injury in the course of his employment, when driving a team of horses hitched to a loaded truck owned and operated by the defendant, when one of the horses, which the defendant knew to be balky, kicked and bit his mate, causing him to lurch, and the reins to pull plaintiff to the street, warranted the jury in finding the defendant negligent. It was also held that a master was bound to furnish instrumentalities reasonably safe and suitable for the authorized use to be made of them by a servant, which duty relates to a team of horses, as well as to the harness and truck and the appliances connected therewith. At page 384 (217 N.Y. 519), the court said:

"The company, as the employer, was under the duty to furnish instrumentalities and appliances reasonably safe and suitable for the authorized use to be made of them by the plaintiff as the employee. The duty related and was applicable to the horses, as well as to the harness and truck and the appliances connected with it. Nooney v. Pacific Express Co., 208 Fed. 274, 125 C.C.A. 474 L.R.A. 1915B, 433; Yarmouth v. France, 19 Q.B.D. 647; Hammond v. Johnson, 38 Neb. 244, 56 N.W. 967;Knickerbocker Ice Co. v. Finn, 80 Fed. 483, 25 C.C.A. 579; Simonds v. Interstate Lumber Co., 215 Mass. 263,102 N.E. 323. Failure on the part of the company to fulfill such obligation constituted negligence, and actionable negligence in case it caused or contributed to the injuries received and those injuries were reasonably apprehensible."

In Cowan v. Hydraulic Press Brick Co., 222 S.W. (Mo. App.) 924, it was held that the master must furnish his servant with a team reasonably safe for the purposes intended, in determining which the age and experience of the servant must be considered. See, also, Smith v. Lumber Co., 22 Idaho, 782, 128 P. 546;Arkansas Smokeless Coal Co. v. Pippins, 92 Ark. 138, 122 S.W. 113, 19 Ann. Cas., at page 863, and case note beginning at page 863, of the Ann. Cas. report.

We think, therefore, that the testimony of the plaintiff as to the disposition and character of the ox, and the cause of the injury, and the notice to the master, was sufficient to show negligence on the part of the master in furnishing the unsafe animal.

It is next insisted that, conceding that the team was unsafe and that the master was negligent with reference thereto, still plaintiff, with knowledge of the character of the team, voluntarily used said team and assumed the risk of so doing. Under section 504, Hemingway's Code (chapter 156, Laws of 1914), an employee does not assume the risk of his employment where the master is negligent, with certain exceptions therein named, which do not apply to the plaintiff in this case. It was not, therefore, a bar to the plaintiff's right of action that he operated with the team furnished him by the company, under the circumstances disclosed. At most under this record it would be contributory negligence only.

It is next insisted that the plaintiff cannot recover because the injury was inflicted by the negligence of a fellow servant. We do not think the fellow-servant rule applicable to the facts in this case. The injury was not caused by the negligence of the fellow servant, but was caused by the unsafe instrumentality furnished by the master.

It is next insisted that it was error to refuse to permit the defendant to propound the questions to Dr. Butler above set forth, that Dr. Butler was a very important witness, and that defendant had a right to interrogate him for the purpose of showing his feeling, bias, prejudice, etc. It is manifest from the record that Dr. Butler's testimony was highly important in determining the extent of the injury. Much would depend upon his attitude as to fairness and his unbiased attitude in the case. The value to be given to testimony of this kind depends to a great extent upon the attitude and fairness of the witness. We think the questions should have been permitted, and that it was error for the court below to exclude them. We cannot say what effect this might have on the amount of the verdict. It was important on the measure of damages. We find, therefore, no reversible error on liability. We think the question was clearly submitted, and that the liability was established, but the judgment as to the amount of the damages will be reversed, and the case will be remanded for a new trial as to damages alone.

Affirmed in part; reversed and remanded in part.